Fairfax Supervisors Back Cuccinelli’s War on EPA

A central act in AG Ken Cuccinelli’s schtick is blaming the EPA for everything bad in the world: high electricity prices, climate change conspiracies, the heartbreak of psoriasis — you name it. It’s who he is.

But why would the Democratic-controlled Fairfax County Board of Supervisors aid and abet him in this act — at a time when he is running to become the #1 Tea Party Governor in America?

You better ask them. The Board and Cuccinelli just won a lawsuit against EPA on the issue of protecting aquatic life in a local creek.

“EPA was literally treating water itself – the very substance the Clean Water Act was created to protect – as a pollutant.”

Really? Well, here’s my challenge to Kookinelli and his supporters: please read through the hundreds of pages of EPA’s regulatory decision on this matter — and show me where they declare water to be a pollutant.

They don’t — this case is about the regulation of stormwater runoff, a matter which EPA has regulated for years through the Clean Water Act, which Virginia itself regulates through the Virginia Stormwater Management Act, which indeed has been controlled going back as far as ancient Crete. The problem is that in urban environments, full of concrete and asphalt, stormwater no longer naturally percolates through the greenery and soil, but is channeled at high levels and velocity into streams — picking up all manner of pollutants as it goes (oil, pesticides, fertilizer, plastic, etc.). It also effectively gouges out stream banks through erosion (as shown in the photo above), causing sediment to build up and threatening aquatic life in the process.

In this case, Accotink Creek had been found environmentally deficient since 1996. EPA’s proposed solution was for Fairfax County to reduce its stormwater runoff, thereby limiting further sediment flow into the stream. As EPA and the judge stated clearly, stormwater here was to be regulated as a “surrogate” for the sediment, not as the “pollutant” itself. Judge O’Grady’s decision, found on Cuccinelli’s own website, states clearly: “Both parties agree that sediment is a pollutant and stormwater is not.”

EPA has regulated stormwater runoff through another part of the Clean Water Act for years; the only question here is whether they could regulate stormwater in this instance, using a different part of the statute.

The only argument of the plaintiffs for which I might have any sympathy is the question of “unfunded mandates” — it is true that Congress creates, and Federal agencies enforce, requirements without any money provided to help local governments achieve them. That said, Fairfax County is the third-wealthiest county in America, not likely to go bankrupt any time soon. And if you want more Federal support for local environmental progress, don’t empower Tea Party government-hating types like Ken Cuccinelli.

In addition, EPA in its regulatory decision encouraged solutions that involved not just greater stormwater permitting, but creative solutions — “best management practices” or BMPs in bureaucratese — that would give us a literally greener county:

This comprehensive implementation approach could include BMPs that directly restore/improve aquatic habitat (such as streambank restoration and reconnection of the floodplain to the stream), as well as BMPs that directly address the existing hydrologic alteration (such as green roofs, pervious pavements, rain gardens, and other low impact development/green infrastructure techniques).

A Fairfax County full of more parks, green roofs, restored streambanks and living streams — sounds like a nightmare!

It is very unfortunate that Fairfax County Supervisor Sharon Bulova and her minions have chosen to give Ken Cuccinelli yet another chance to grandstand and prevaricate — and actually win a case for a change (admittedly one presided over by a George W. Bush appointee). I would strongly encourage these Board members to separate themselves from Cuccinelli’s thoroughly dishonest and misleading rhetoric about the case.

“Attacking the regulatory action as illegal or inappropriate, to me, is kind of overkill,” says Virginia State Del. Scott Surovell (D-Mount Vernon).

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Regardless of whether or not the EPA has the authority to set that kind of rule, some are uncomfortable with the politics. Del. Kaye Kory (D-Falls Church) is among them. She believes Fairfax County’s lawsuit against the EPA sends the wrong message and undercuts the local government’s reputation as an environmental leader.

“Simply the headline that the county is suing the EPA and they are partnering with Cuccinelli is very damaging to that reputation,” says Kory.